Justice Anthony Kennedy wrote the opinion legalizing same-sex marriage. Here’s why he says it won’t be overturned

By Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — Retired Justice Anthony Kennedy, who wrote the Supreme Court’s 2015 opinion declaring a right to same-sex marriage, recalled on Wednesday one of the poignant realities that influenced him – and why he believes the decision would never be overturned.

“A large part of the reasoning in the opinion, and the background of the opinion, was that I had not known how many children were adopted by parents” who were gay or lesbian, Kennedy said during an interview with CNN in his chambers. “At first, I thought there were 75,000 children or so. It’s in the hundreds of thousands.”

The court’s decision in Obergefell v. Hodges was rooted in Fourteenth Amendment guarantees of liberty and equal protection of the law. Yet Kennedy, who retired in 2018, told CNN his concern for adopted children “was a crucial part of my reasoning,” and he predicted that could ensure it endures.

The cost of excluding same-sex couples from the benefits of marriage undergirded much of the ruling. “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser,” Kennedy wrote in the opinion. “They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.”

Kennedy was joined by four other justices for a bare majority. Dissenting were Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, all of whom remain on the bench. (The fourth dissenter, the late Justice Antonin Scalia, was so angered that he stopped joining the justices’ regular lunches and barely spoke to Kennedy, reconciling in February 2016, just days before his death.)

During the interview with CNN, Kennedy acknowledged that the decision remains controversial. Thomas has urged its reconsideration and a pending appeal from a former country clerk in Kentucky, Kim Davis, could provide a potential case for such a reversal.

Still, the current court majority has shown no collective interest in discarding the decade-old landmark. And Kennedy stressed his belief in a core judicial principle of adherence to precedent, known by the Latin phrase stare decisis.

“Stare decisis, in large part, is based on reliance, and there has been substantial reliance by adopting parents,” Kennedy said. If the ruling were reversed, he said, expectations for a guaranteed way life for hundreds of thousands of same-sex couples and their families would be dashed.

“That would be a tremendous reliance problem,” he said.

During his three-decade tenure, the centrist-conservative Kennedy, now age 89, provided the decisive fifth vote on some of the most significant controversies in contemporary America, including gay legal rights, access to abortion and college affirmative action. He has written a memoir, “Life, Law & Liberty,” in which he expounds on his roots in California and the path to his 1988 high-court appointment by President Ronald Reagan.

Among the case highlights in the book are those that found him struggling with his Catholic faith. As previously reported by CNN, he considered quitting over abortion in 1992, before casting the decisive vote to uphold Roe v. Wade.

Regarding gay rights, where he penned a series of milestone decisions, Kennedy wrote in the book, “My colleagues, knew, too, that religious and traditional family values had led me to feel some personal conflict over these matters. … Because my colleagues knew of these tensions, and the cases looked as if they would be closely divided, the opinions were assigned to me.”

He assumed that role most pivotally on abortion rights in the 1992 Planned Parenthood v. Casey, which affirmed the 1973 Roe decision that gave women the constitutional right to end a pregnancy.

Four years after Kennedy left the bench, the Supreme Court overturned Roe v. Wade and ended nearly a half century of nationwide access to abortion. The justice who replaced Kennedy, Brett Kavanaugh, provided one of the five votes in Dobbs v. Jackson Women’s Health Organization.

Would he have voted to reverse Roe v. Wade?

“I won’t comment,” he said, when asked directly. “I stand by what I’ve written.”

Kennedy addressed, however, the May 2022 leak of a draft of the opinion in Dobbs.

“It was most upsetting,” he said, “because fingers starting being pointed in every direction, you know, Who’s the leaker? Was it a justice? A clerk? Or somebody in the clerk’s office? I thought they should have done a little more to investigate who it was. It was very serious.”

In a report issued in January 2023, eight months after the leaked opinion was published by Politico, the court said officials had failed to determine who was responsible; the report noted that at least 90 people at the court had access to the early draft of the Dobbs decision.

Kennedy, a proud native of Sacramento, California, still spends time in his court chambers filled with Western-inspired art such as Edwin Deakin’s “Still Life with Grapes” and an 18-inch bronze model created by equestrian sculptor Thomas Holland for the Pony Express Monument.

He said he is disheartened by the increasingly caustic tone of court opinions and tendency of justices to question each other’s personal motives, rather than legal reasoning.

“It’s very important to me that the opinions be written in a more moderate tone than they are,” Kennedy said. “Ultimately, the law depends on the respect given to the court’s opinions. That respect is undermined if there is a quarrelsome rhetoric.”

Kennedy declined to criticize any individual justices or national figures, including President Donald Trump.

“I don’t think in our position we should engage in political dialogue. It wouldn’t be right for me as a judge,” Kennedy said, later adding: “I’m concerned about the level of discourse and confrontation in the political world – generally.”

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